| People v Benson |
| 2019 NY Slip Op 08572 [177 AD3d 994] |
| November 27, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gaven Benson, Appellant. |
Laurette D. Mulry, Riverhead, NY (Edward E. Smith of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Nicole L. Gallo of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Fernando Camacho, J.), rendered October 28, 2016, convicting him of attemptedrobbery in the second degree, upon his plea of guilty, and sentencing him to adeterminate term of imprisonment of five years and a period of postrelease supervision offive years.
Ordered that the judgment is modified, on the law, by vacating the period ofpostrelease supervision; as so modified, the judgment is affirmed, and the matter isremitted to the County Court, Suffolk County, for the imposition of an appropriate periodof postrelease supervision in accordance herewith.
The record demonstrates that the defendant knowingly, voluntarily, and intelligentlywaived his right to appeal (seePeople v Sanders, 25 NY3d 337, 339-342 [2015]; People v Lopez, 6 NY3d248, 256-257 [2006]; People v Lyons, 161 AD3d 1196 [2018]; People v Miranda, 144 AD3d844 [2016]). The defendant's valid waiver of his right to appeal precludes review ofhis contentions that the County Court improvidently exercised its discretion in decliningto grant him youthful offender treatment, or that the sentence imposed was excessive (see People v Pacherille, 25NY3d 1021, 1024 [2015]; People v Basurto-Lopez, 166 AD3d 643 [2018]; Peoplev Hardy, 120 AD3d 1358 [2014]). However, as the People concede, the defendant'ssentence was illegal to the extent that the court imposed a period of postreleasesupervision of five years. Pursuant to statute, the court was required to impose a periodof postrelease supervision of not less than one and one-half years nor more than threeyears (see Penal Law §§ 70.02 [1] [c]; 70.45 [2] [e]).Accordingly, we vacate the period of postrelease supervision imposed and remit thematter to the County Court, Suffolk County, for the imposition of an appropriate periodof postrelease supervision in accordance with Penal Law § 70.45 (2) (e).Balkin, J.P., Chambers, Leventhal and LaSalle, JJ., concur.